SZSUH v Minister for Immigration

[2014] FCCA 332

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSUH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 332

Catchwords:
MIGRATION – Application for review of decision of the Refugee Review Tribunal – no arguable case raised by the applicant – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.425, 476

Federal Circuit Court Rules 2001 (Cth), r.44.12

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1
Minister for Immigration v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
 SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 26

Applicant: SZSUH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 897 of 2013

Judgment of: Judge Nicholls

Hearing date: 17 February 2014

Date of Last Submission: 17 February 2014

Delivered at: Sydney

Delivered on: 26 February 2014

REPRESENTATION

Applicant: In Person

Counsel for the Respondents Ms Graycar

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application made on 30 April 2013 and amended on 9 July 2013, is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 897 of 2013

SZSUH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 30 April 2013 and amended on 9 July 2013, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 8 April 2013, which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

Background

1. The applicant is a national of Bangladesh (CB 5). He arrived in Australia on 30 August 2011 (CB 14). He applied for a protection visa on 8 September 2011 (CB 1 to CB 26). His claims to protection were set out in his application and in an attached letter (CB 27 to CB 31).

2. The applicant claimed to have been employed with the Bangladesh Police in Bangladesh from May 1998, until he took up employment with the United Nations Mission in Timor-Leste (“Timor”) in November 2010 (CB 17, CB 28 to CB 30). He feared harm from other police on the basis of political opinion (CB 31.5).

3. The applicant claimed to have been active in politics, before joining the police, in support of the Bangladesh Nationalist Party (“BNP”) (CB 27). He claimed he was persecuted, humiliated, and suffered attacks from other police who were supporters of the Awami League (CB 28 to CB 29). He claimed that this continued in Timor (CB 30). He feared that on return to Bangladesh he would be dismissed from his position and that the police department, and the Bangladesh government, would bring false criminal charges against him (CB 31).

4. The applicant attended a interview with the delegate (CB 63) and the applicant submitted a number of documents in support of his claims (CB 37 to CB 52). The delegate subsequently, amongst other things, did not accept the applicant’s claims to have been politically active, nor involved, with the BNP (CB 60 to CB 75).

Before the Tribunal

1. The applicant applied for review to the Tribunal on 26 June 2012 (CB 76 to CB 81). He attended a hearing before the Tribunal on 27 November 2012 (CB 93). The Tribunal’s account of what occurred is contained in its decision record ([29] at CB 116 to [32] at CB 117).

2. The Tribunal also noted that following the hearing, it received information from what it said was an “anonymous source” that the applicant’s claims to be a refugee were “false” ([34] at CB 117).

3. The Tribunal wrote to the applicant by letter dated 30 January 2013 sent pursuant to s.424A of the Act, to notify the applicant of this information, giving him the opportunity to respond to, or comment on, it and noting the relevance of this information to the review (CB 106 to CB 107). The applicant responded in writing (CB 108 to CB 109).

4. The Tribunal noted that, given its inability to test the allegations from an anonymous source, it placed no weight on that information as it considered it to not be reliable evidence ([36] at CB 117).

5. The Tribunal accepted independent country information before it (and the delegate) concerning political violence and conflicts between opposing political parties in Bangladesh that supported the applicant’s claims “in a general way” ([42] at CB 118).

6. The Tribunal accepted, albeit not without some doubt, that the applicant’s father was a member and supporter of the BNP, and that the applicant had some prior involvement with the BNP when he was a student ([44] at CB 119). However, the Tribunal found “he left politics when he joined the police force in 1997” as this was the “applicant’s oral evidence to the Tribunal” ([44] at CB 119).

7. The Tribunal did not accept that the applicant left Bangladesh because he feared or had suffered harm or had been threatened. The Tribunal found he left Bangladesh to go and work as a member of the United Nations Peacekeeping force in Timor ([46] at CB 119). The Tribunal relied on the applicant’s written answer to the relevant question in his protection visa application (see question 42 at CB 18) and what it said was his oral evidence to the Tribunal ([46] at CB 119).

8. The Tribunal found, based on the evidence in the applicant’s passport and the applicant’s oral evidence to it, that he returned to Bangladesh after working in Timor and stayed with his family in Dhaka for about three weeks ([47] at CB 120). The Tribunal found this was not consistent with his claim to fear harm because of claimed past events, nor with his claim to fear harm on return to Bangladesh ([47] at CB 119 to CB 120).

9. The Tribunal also relied on the applicant’s oral evidence that he had no difficulty from the authorities or anyone else in re-entering and leaving Bangladesh, nor while he stayed with his family ([47] at CB 119 to CB 120).

10. The Tribunal did not accept that the applicant could not return to his house in his home area in Bangladesh because of his father’s political profile and his own claimed past involvement as his father and other family members, as the applicant suggested, “virtually his whole family”, remained living there ([47] at CB 119 to CB 120).

11. The Tribunal did not accept “as true” that the applicant would be targeted because of his father’s political profile, including if he returned to his home area ([48] at CB 120).

12. The Tribunal rejected the applicant’s claims to fear serious or significant harm, and the applicant’s claims of physical harm while he was a police officer, as being for the reasons now claimed ([48] at CB 120). The Tribunal took a similar view of the claims relating to his time in Timor ([49] at CB 120).

13. While the Tribunal accepted that the applicant had political disagreements with other police who were members of different political parties, and that he suffered harassment in Timor, it did not accept that he feared serious or significant harm for that reason if he were to return to Bangladesh, or that that was the reason he did not want to return to Bangladesh ([50] at CB 120 to CB 121).

14. The Tribunal rejected the numerous examples of what the applicant feared would happen to him if he returned to Bangladesh. These included, that he would be gaoled, have false charges brought against him, or lose his job for any reason arising from his history in Bangladesh, or his time in Timor ([50] at CB 120 to [52] at CB 121).

15. The Tribunal also rejected the claim that the applicant’s wife and children were receiving threats in Bangladesh from Awami League members and supporters ([53] at CB 121 to CB 122).

16. The Tribunal reported that it discussed with the applicant, and considered, each of the documents that he had provided in support of his application. The Tribunal explained (at [54] at CB 122) that:

    “…Given its concerns about the applicant’s credibility and given the country information about the prevalence of document fraud in Bangladesh which the Tribunal consulted, and which it discussed generally with the applicant at the hearing, the Tribunal considers that the documents from Bangladesh produced by the applicant in support of his claims are not reliable evidence of the facts in them.”

17. The Tribunal’s conclusions were summarised as follows (at [55] at CB 122):

    “In the Tribunal’s view there is no plausible evidence before it that the applicant has suffered persecution in Bangladesh, or that he has a real chance of suffering persecution there, from political opponents, Awami league members/supporters, the police or from anyone else, because of his political opinion or imputed political opinion, because he is a member of a particular social group, or for any other Convention reason, either now or in the reasonably foreseeable future, if he returns to Bangladesh.”

The Application Before the Court

1. The application to the Court as originally made was expressed in brief, general terms. At the first Court date on 29 May 2013, the applicant appeared in person. He was assisted by an interpreter in the Bengali language. Given the nature of the grounds, I set the matter down for a hearing (“show cause hearing”) pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). The applicant was given the opportunity to file further material, including any amended application, which he has since done.

2. That amended application, filed on 8 July 2013, is in the following terms:

   “1. The Refugee Review Tribunal failed to put any weight to the supporting documents those I lodged before the Tribunal to support my claims.

   Particulars:

   A. The Tribunal failed to put any weight to the supporting documents those I lodged before the Tribunal to support my claims that:

   i) The Tribunal did not put any weight to the documents because it had concern about my credibility and due to the prevalence of documents fraud in Bangladesh.

   ii) However the Tribunal failed to response my continuous request to verify my claims.

   iii) Without verification the Tribunal made its conclusion that Australia has not obligation to give me protection.

   iv) The Tribunal failed to uphold procedural fairness at the time of assessing my review application.

   2. The Refugee Review Tribunal failed to assess my persecution on the basis of my political involvement with the BNP and my family member’s political involvement with the BNP in Bangladesh.

   Particulars:

   A. The Tribunal failed to assess my persecution on the basis of my political involvement with the BNP and my family member’s political involvement with the BNP in Bangladesh that:

   i) The Tribunal accepted that I was involved with BNP politics during my student life.

   ii) The Tribunal accepted that my father was involved in BNP politics.

   iii) The Tribunal accepted that political violence exists in Bangladesh between opposing parties.

   iv) However the Tribunal made its decision that if I have been removed from Australia there will be no risk under section 36(2)(aa) of the Migration Act.

   v) I submit that the Tribunal’s decision was contradictory about its findings of existence of political violence in Bangladesh and the comment about me for complementary protection criterion because:

   If the Tribunal enquiry about my job records the Tribunal found that there were significant records about my punishment because of my political involvement with the BNP.”

   [Errors in Original.]

3. At the hearing the applicant again appeared in person. He was assisted by an interpreter in the Bengali language. Ms R. Graycar of counsel appeared for the Minister.

The Application For Adjournment

1. At the beginning of the hearing the applicant sought an adjournment. He stated that he wanted time to obtain documents that he would subsequently tender to the Court. These were, he said, documents that he claimed would “authenticate” his political affiliation in Bangladesh, that he had been subject to “discrimination”, and related claims, including details from his “police service book”. The applicant also said he sought the adjournment to obtain a transcript of the Tribunal hearing.

2. The application for an adjournment was refused for the following reasons. First, at the first Court date in this matter on 29 May 2013, orders were made by consent that included the opportunity for the applicant to file any evidence by way of affidavit in support of his application.

3. Nothing has been filed by the applicant beyond the amended application. In these circumstances the applicant has had over eight months to file any evidence and has not done so.

4. Second, both specifically relevant to the point above, and of more general application to the request for an adjournment, the applicant was referred to a lawyer on the panel of the then Refugee Review Tribunal Legal Advice Scheme. He confirmed to the Court that he met with the lawyer and was given advice. A certificate on the Court file from the lawyer notes that the consultation was on 25 June 2013, and advice was given dated 27 June 2013.

5. In these circumstances the applicant had the opportunity, at that time, to further understand the opportunity provided to him by the Court’s orders. Noting, in any event, that the proposed orders were translated for him at the first Court date by an interpreter in the Bengali language.

6. Third, I ultimately understood from the applicant that there were four sets of documents he wished to obtain. These were his police “service book” in Bangladesh, the records of his United Nations employment in Timor, a first information report in which an allegation of murder was made against him, and a transcript of the hearing before the Tribunal.

7. The applicant did not explain how the first two sets of documents could assist him in these proceedings. At best, based on what the applicant said (that the documents would show that he had been subject to harassment and discrimination) the purpose of submitting any such documents, in the absence of anything further, could only be to seek impermissible merits review from the Court (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)).

8. In any event, the Tribunal accepted that he had disagreements with some of those with whom he had worked and had been subjected to some harassment and discrimination, both in Bangladesh and Timor (see [49] to [50] at CB 120).

9. In these circumstances the documents could not reveal error in the Tribunal’s findings. To the extent that the documents may have been intended as some challenge to the Tribunal’s subsequent findings that he had not been assaulted, as he claimed, then the answer to the applicant is that any challenge to the Tribunal’s findings that he would not suffer serious or significant harm on return, in the circumstances, could also be seen as a request for impermissible merits review (Wu Shan Liang). In any event, the applicant has also had sufficient and reasonable time, at least, since the first Court date if not earlier, to obtain those documents.

10. It is of note, as pointed out by the Minister’s counsel at the hearing, that the matter of these two sets of documents raised by the applicant himself in a letter to the Tribunal dated 19 February 2012 (CB 108 to CB 110) in which the applicant said:

    “…I cannot bring those records (service books) because those are undisclosable to me but you as an authority are able to bring…”

11. I agree with the Minister’s submissions that the applicant stated that those documents would not be made available to him. Plainly, his inability to obtain these documents, despite, as he claimed before the Court, his repeated attempts to do so, would make any adjournment now for that purpose an exercise in futility given what his statement and the two years that have elapsed since that statement was made.

12. The third document (the first information report of the case brought against the applicant) was, on what the applicant told the Court, created well after the date of the Tribunal’s decision. By this request, in relation to this document, the applicant again seeks impermissible merits review (Wu Shan Liang).

13. In relation to the transcript of the Tribunal hearing, as a basis for granting the adjournment, three matters, at least, speak against the adjournment. First, the applicant has had a more than reasonable time to obtain any such transcript. He has had access to a legal advisor who the applicant could have asked to explain the process of obtaining and filing the transcript to him.

14. Second, and, if anything, of greater importance, the applicant did not say how the transcript would, or even could, assist him. Nor did the applicant refer to any particular part of the audio recording (“CD”) of the Tribunal hearing which may have assisted him. What he put to the Court in support of his grounds, and otherwise, was plainly directed to seeking impermissible merits review (Wu Shan Liang).

15. Third, the applicant did not point to any difficulty in relation to obtaining the transcript in the time that had been made available to him. In these circumstances his lack of impulsion in prosecuting his case, being at most the filing of a, it must be said, “formulaic” amended application, also weighs against the granting of an adjournment. Therefore, I did not grant the adjournment application and proceeded to a “show cause” hearing.

The Issue

1. The issue before the Court today is whether the application, as amended, raises an arguable case for the relief sought. It does not. I have set out above some of the findings made by the Tribunal. Any plain reading of the Tribunal’s decision record reveals that the applicant’s grounds, in essence, seek impermissible merits review (Wu Shan Liang).

2. Nor did the applicant’s submissions before the Court assist him. They were essentially a challenge to the factual findings and conclusions made by the Tribunal and a plea for more time to make out his case. This latter was directed to the merits of his claims to protection and was dealt with in the consideration above in relation to the adjournment application.

3. These submissions were first, to ask the Court to consider why he would have left Bangladesh if he had not been “generally persecuted”. Second, that a “false case” had been lodged against him four months ago. Third, that he told the Tribunal the truth.

4. The first is a question that plainly expresses a grievance with the Tribunal’s findings and conclusions. It does not raise an arguable case. In any event, the Tribunal also appears to have been asked this question. It found as the reason that he left Bangladesh was to go overseas and work as a member of the United Nations peacekeeping mission to East Timor ([46] at CB 119).

5. Further, the Tribunal found that it did ([51] at CB 121):

   “…not accept the applicant made the decision to come to Australia in November 2011 and remain here for the reasons that he claims, including that he was, or thought he would be, harmed in Timor.”

6. I should note that the Tribunal made a factual error with reference to “November 2011” above. The applicant plainly came to Australia on 30 August 2011 (CB 14, CB 60). He applied for the protection visa in September 2011 (CB 1). However, as is plain, this is not such a factual error as can be said to have affected the Tribunal’s consideration and to have any possibility of revealing jurisdictional error.

1. The second matter related to an event after the making of the Tribunal’s decision and cannot reveal jurisdictional error in that decision for that reason.

2. In any event, the applicant made a claim before the Tribunal (and the delegate) that, amongst other things, false charges had been brought against him in Bangladesh. The applicant submitted documents dated in 2006 in support of this claim (CB 37 to CB 42).

3. The Tribunal notes that this, as with other claims of harm, were put as part of the “problems he encountered in Bangladesh, including during the time that he was working as a police officer…” ([31] at CB 116). The Tribunal’s record reveals that he continued to work as a police officer in Bangladesh until he went to Timor in 2010.

4. The Tribunal rejected the claim that he left Bangladesh because, amongst other matters, of the false charges against him ([46] at CB 119), and gave reasons why the “false case” document, as with other documents, was “not reliable evidence of the facts in them” ([54] at CB 122). These findings were all reasonably open to the Tribunal in what was before it. No arguable case is revealed.

5. The applicant’s assertion now that he told the truth to the Tribunal cannot assist him. Such findings of fact, including findings reflecting concerns about an applicant’s credibility, are for the Tribunal to make in the proper exercise of its jurisdiction (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407).

Consideration

Ground One

1. There are a number of elements to ground one. First, the applicant complains that the Tribunal gave no weight to his supporting documents. The short answer to this complaint is that it is not required to do so. The allocation of weight to such material is for the Tribunal to determine in its evaluation of all the evidence before it. The Tribunal’s findings in this regard were reasonably open to it on what was before it, including its evaluation of the applicant’s own evidence ([54] at CB 122 and see Wu Shan Liang at 280-281 per Brennan CJ, Toohey, McHugh and Gummow JJ and 291-292 per Kirby J; Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at 579-580 Gummow and Hayne JJ; [1999] HCA 14 at [195] to [197] per Gummow and Hayne JJ; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ.)

2. Second, contrary to the applicant’s complaint, in particular “i)”, the Tribunal did not have doubt about the applicant’s credibility because of the prevalence of documentation fraud in Bangladesh. Those doubts, as the Tribunal comprehensively explained, arose from its evaluation of the applicant’s own evidence. The prevalence of document fraud was an additional, not causative, factor in the relevant reasoning of the Tribunal (see especially at [54], at CB 122 and the use of the words “…given by the Tribunal”).

3. Third, the applicant appears to complain, if put at its highest, that the Tribunal should have investigated his claims so that they could be “verified” with the Bangladeshi government.

4. In its decision record the Tribunal reports that the applicant made such a request at the hearing (see [32] at CB 117). The Tribunal reports that it told the applicant ([32] at CB 117):

   “…that it was not going to make enquiries of the government of Bangladesh on his behalf but that it would consider all the information that he provided; it clarified with the applicant at the end of the hearing that he had provided the information that he wished to provide at the hearing.”

5. The applicant’s proposition that the Tribunal should make inquiries of the very government, and its instrumentalities, against which he has made claims that their actions gave, and give, rise to a fear of persecution is surprising given the nature of his claims to protection and his claimed absence of state protection. In any event, there is no general obligation on the Tribunal to make inquiries on an applicant’s behalf (Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 and Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 at [22] per French CJ and Kiefel J. Nor is this a case where there is an “..obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review” (Minister for Immigration v SZIAI [2009] HCA 39 at [25], see also Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 at [60] per Kenny J).

6. Further, it is by no means clear, for example, how the applicant’s “police service book”, which apparently was in the possession of the Bangladesh police, could assist him given that the Tribunal accepted the fact of his police service and attendant details (see, for example, [49] at CB 120).

7. Fourth, the applicant complains of a breach of procedural fairness at particular “iv)”. If by that he means the Tribunal made such an error in relation to the assigning of “no weight” to his documents, then plainly the applicant has misunderstood the relevant principles as outlined above.

8. In any event, no breach of procedural fairness is evident, nor is there anything in the material before the Court to suggest any concern which could form the basis of an arguable case. The applicant was invited to a hearing pursuant to s.425 of the Act. The Tribunal raised the issues in the review with him and he was given the opportunity to respond (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592).

Ground Two

1. To the extent that ground two takes issue with some of the factual findings made by the Tribunal then a request for impermissible merits review does not raise an arguable case for the relief sought.

2. At best, it may be said that the applicant suggests that the Tribunal’s decision was illogical or irrational (see the reference to “contradictory” in ground two at “v)”). The complaint appears to be that the Tribunal accepted his past, and his father’s, political involvement and accepted that political violence exists in Bangladesh, yet found that he would not be at risk of serious or significant harm if he were to return.

3. As has been said, while Tribunal minds may differ as to the evaluation of the facts found, no illogicality or irrationality arises where the impugned decision was reasonably open on the facts (see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 per Crennan and Bell JJ and Heydon J and see also SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58, especially per Rares J and McKerracher J). This ground does not assist the applicant.

4. For the sake of completeness, I also note, as submitted by the Minister, that the Tribunal dealt with each of the claims expressly made, or clearly arising, in the circumstances presented by the applicant (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263). No arguable case arises in this regard.

Conclusion

1. In all the circumstances, there is no arguable case raised by the applicant for the relief that he seeks. It is appropriate to dismiss the application, as amended, pursuant to r.44.12(1)(a) of the Rules. I will make an order accordingly.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  26 February 2014